98088555•Ryan Morar
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This opinion is not a precedent of the TTAB Mailed: June 23, 2026 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Ryan Morar _____ Serial No. 98088555 _____ Robert M. Schwartz, of Robert M. Schwartz, P.A., for Ryan Morar. Mackenzie Olson, Trademark Examining Attorney, Law Office 112, Matthew Cuccias, Managing Attorney _____ Before Wellington, Casagrande, and O’Connor, Administrative Trademark Judges. Opinion by Casagrande, Administrative Trademark Judge: Applicant Ryan Morar seeks Principal Register registration of the mark JETPACK HOM(M)E (in standard characters; “HOMME” disclaimed) for “Shirts, pants, sweaters, dresses, skirts, shoes; Outerwear, namely, coats, jackets, anoraks, parkas, blazers, hooded sweatshirts, windbreakers, rain jackets,” in International Class 25.1 The application was refused under Section 2(d), 15 U.S.C. § 1052(d), due 1 Application Ser. No. 98088555 was filed on July 17, 2023, under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), claiming a date of first use anywhere and in commerce of February 28, 2018. The application states that “[t]he English translation of ‘HOMME’ in the mark is ‘MAN’.” Originally, the application also identified “Bags, namely, handbags,
Serial No. 98088555 - 2 - to likelihood of confusion with the standard-character mark JETPACK, which is registered on the Principal Register for “Backpacks; All-purpose carrying bags” in International Class 22.2 After final refusal,3 Applicant requested reconsideration and appealed.4 We suspended the appeal and remanded to the Examining Attorney to consider the reconsideration request.5 After the request was denied,6 the appeal resumed.7 Both Applicant and the Examining Attorney filed appeal briefs.8 Applicant filed a reply brief.9 For the reasons explained below, we affirm the refusal to register. ANALYSIS Section 2(d) of the Trademark Act prohibits registration of a mark that “so resembles a mark registered in the Patent and Trademark Office … as to be likely, when used on or in connection with the goods of the applicant, to cause confusion, or purses, bags with shoulder straps, gym bags, duffle bags” in International Class 18 and “Jewelry” in International Class 14, but Applicant deleted these goods during prosecution. 2 Registration No. 5232078 issued on June 27, 2017 (Section 8 declaration accepted and Section 15 declaration acknowledged). 3 See Nov. 11, 2024, Final Office Action. Any citations to specific pages of prosecution filings will be to .pdf-format versions of the documents as downloaded from the USPTO’s TSDR electronic trademark docketing system. There had been other refusals and requirements during prosecution, but they were resolved. 4 See May 22, 2025, Request for Reconsideration; Notice of Appeal; 1 TTABVUE. References to the briefs and record cite to the Board’s TTABVUE electronic docket system. The number preceding “TTABVUE” represents the docket number of the filing in TTABVUE and any number immediately following “TTABVUE” is the specifically-cited page(s), if any. 5 See 2 TTABVUE. 6 See October 14, 2025, Denial of Reconsideration. 7 See 5 TTABVUE. 8 See 6 TTABVUE (Applicant’s brief); 8 TTABVUE (Examining Attorney’s brief). 9 See 9 TTABVUE.
Serial No. 98088555 - 3 - to cause mistake, or to deceive.” 15 U.S.C. § 1052(d). We determine whether confusion is likely by analyzing all probative facts in evidence relevant to the likelihood-of- confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973). See, e.g., In re Charger Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023). Though du Pont lists thirteen numbered factors (some with subparts), we generally address only those that are relevant and material to the case before us, see, e.g., Shen Mfg. Co. v. Ritz Hotel, Ltd., 393 F.3d 1238, 1241 (Fed. Cir. 2004); Octocom Sys., Inc. v. Houston Computer Servs., Inc., 918 F.2d 937, 943 (Fed. Cir. 1990). Typically, these are the factors addressed in the briefs and on which there is relevant evidence in the record. See, e.g., Dollar Fin. Grp., Inc. v. Brittex Fin., Inc., 132 F.4th 1363, 1371-72 (Fed. Cir. 2025); Cunningham v. Laser Golf Corp., 222 F.3d 943, 946- 47 (Fed. Cir. 2000). We then weigh our findings on these factors to determine if, on balance, confusion is likely. See, e.g., Charger Ventures, 64 F.4th at 1381; In re Majestic Distilling Co., 315 F.3d 1311, 1319 (Fed. Cir. 2003). A. Comparison of the marks The first likelihood-of-confusion factor assesses “[t]he similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression.” du Pont, 476 F.2d at 1361. Because the comparison of the marks is always an important inquiry, see, e.g., Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1165 (Fed. Cir. 2002); Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103 (CCPA 1976), we next set forth the parameters governing how we compare the marks.
Serial No. 98088555 - 4 - We assess marks on the basis of their “appearance, sound, connotation and commercial impression.” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 1340 (Fed. Cir. 2015) (citation omitted); accord In re i.am.symbolic, llc, 866 F.3d 1315, 1324 (Fed. Cir. 2017). Similarity in all aspects is not required, however. This factor supports refusal “if the similarity in either form, spelling or sound alone is likely to cause confusion.” Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 732 (CCPA 1968) (citation omitted); see also Hancock v. Am. Steel & Wire Co., 203 F.2d 737, 740 (CCPA 1953) (“it is proper to consider [the marks’] appearance, sound and meaning … but a combination of all three factors need not necessarily exist”) (cleaned up; citations omitted). We do not compare the marks side-by-side, as though in a laboratory. Rather, we keep in mind both that consumers depend on their recollection of marks to which they’ve previously been exposed and that their memories are fallible. See, e.g., In re St. Helena Hosp., 774 F.3d 747, 751 (Fed. Cir. 2014); Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 1007 (CCPA 1981). We compare marks in their entireties. See, e.g., Oakville Hills Cellar, Inc. v. Georgallis Holdings, LLC, 826 F.3d 1376, 1380 (Fed. Cir. 2016). Sometimes, however, “one feature of a mark may be more significant than another, and it is not improper to give more weight to this dominant feature in determining the commercial impression created by the mark.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir. 2012) (citations omitted). “Similarity is not a binary factor but is a matter of degree.” St. Helena Hosp., 774 F.3d at 752 (citation omitted). “The proper test is … whether the marks are
Serial No. 98088555 - 5 - sufficiently similar in terms of their commercial impression such that persons who encounter the marks would be likely to assume a connection between the parties.” i.am.symbolic, 866 F.3d at 1323 (citation omitted); see also Phillips Petroleum Co. v. Knox Indus. Corp., 277 F.2d 945, 947 (CCPA 1960) (“The issue is whether the marks are confusingly similar, not whether they are identical.”) (citation omitted). Here, Applicant’s mark is JETPACK HOM(M)E and the cited mark is JETPACK. The first term in Applicant’s mark constitutes the entirety of the registered mark. Generally, first words tend to contribute relatively more to the overall commercial impression of a multi-term mark. See, e.g., Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin, 396 F.3d 1369, 1372-73 (Fed. Cir. 2005); Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 876 (Fed. Cir. 1992). To JETPACK, Applicant adds “HOM(M)E,” but Applicant has disclaimed exclusive rights in the term HOMME. A disclaimer is evidence that the term is not distinctive in connection with the goods. Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1565 n.1 (Fed. Cir. 1987); Quaker State Oil Ref. Corp. v. Quaker Oil Corp., 453 F.2d 1296, 1299 (CCPA 1972). While disclaimed terms are part of the mark as a whole and thus must be considered, they tend not to be the dominant contributor to a mark’s overall commercial impression. See, e.g., Charger Ventures, 64 F.4th at 1382; Hewlett- Packard, 281 F.3d at 1266; see also Wella Corp. v. Cal. Concept Corp., 558 F.2d 1019, 1022 (CCPA 1977) (“When one incorporates the entire arbitrary mark of another into a composite mark, inclusion in the composite mark of a significant, nonsuggestive element will not necessarily preclude a likelihood of confusion. And inclusion of a
Serial No. 98088555 - 6 - merely suggestive or descriptive element, of course, is of much less significance in avoiding a likelihood of confusion.”) (citations omitted). Applicant argues that the Examining Attorney focused too much on the “JETPACK” component of Applicant’s mark and did not give “fair weight” to “HOM(M)E,” which Applicant says makes a “significant contribution” to the “the appearance, sound, sight and commercial impression of applicant’s mark.10 Applicant cites In re Hearst Corp., 982 F.2d 493 (Fed. Cir. 1992), for the proposition that “marks tend to be perceived in their entireties, and all components thereof must be given appropriate weight.”11 According to Applicant, the “(M)” part of “HOM(M)E” renders it visually distinctive and shows that the term might or might not have the second “M.” With two M’s, it means “man,” as in the translation statement. But, with one M, it spells “home.”12 According to Applicant, the option to ignore or “read-out” one of the M’s signals Applicant’s “brand’s intention to be unisex ….”13 What an applicant intends its mark to communicate is, however, irrelevant. We base our decisions on what the evidence shows consumers will perceive, which may or may not be what a mark owner intends. See, e.g., Hydra Mac, Inc. v. Mack Trucks, Inc., 507 F.2d 1399, 1400 (CCPA 1975); UMG Recordings, Inc. v. Mattel, Inc., No. 10 6 TTABVUE 4. Applicant does not argue, nor do we see, that the Examining Attorney ignored the “HOM(M)E” component of Applicant’s mark. 11 See id. 12 See id. at 5-6. 13 See 6 TTABVUE 6. The Examining Attorney objects to the website excerpt Applicant embeds in its brief as support for this intended “unisex” connotation because it wasn’t made part of the record during prosecution. We sustain the objection. See Trademark Rule 2.141(d), 37 C.F.R. § 2.142(d) (“[t]he record should be complete prior to the filing of an appeal. Evidence should not be filed with the Board after the filing of a notice of appeal.”).
Serial No. 98088555 - 7 - 91176791, 2011 WL 5014005, at *21 (TTAB 2011). And while we agree with Applicant’s exhortation to follow the Federal Circuit’s guidance to consider the mark as a whole, giving appropriate weight to its component parts in assessing the mark’s overall commercial impression, we disagree with Applicant that the Examining Attorney did not follow this rule. The Examining Attorney argues that “the descriptive term ‘HOMME’ has been disclaimed and so is less significant in forming the commercial impression of Applicant’s mark. Specifically, consumers may assume that applicant’s mark comprises the men’s clothing line of registrant’s branded products.”14 As we mentioned, the word JETPACK comes first, and in that position is more likely to be remembered and, on top of that, the second word HOMME is descriptive and has been disclaimed for that reason. Those two circumstances constitute “rational reasons” for giving HOMME less weight in the analysis of the overall commercial impression of Applicant’s mark. See, e.g., Detroit Athl., 903 F.3d at 1305; see also Century 21, 970 F.2d at 876 (Board correctly found that “Century” is the “dominant element of CENTURY LIFE OF AMERICA due to applicant’s disclaimer of the rest of its mark” and because “upon encountering each mark, consumers must first notice this identical lead word”). Like the Examining Attorney, we find that the dominant element in the commercial impression of Applicant’s mark as a whole is the first term JETPACK, and “HOM(M)E” does less work in creating the mark’s overall commercial impression. And, as the Examining Attorney asserts, consumers familiar with the 14 See 8 TTABVUE 6.
Serial No. 98088555 - 8 - registered mark may mistakenly think Applicant’s mark signifies a line of goods by the registrant that is directed to men. Applicant reminds us that the marks sound and look different because its mark adds HOM(M)E to the first word JETPACK.15 True enough, but they’re also partially aurally and visually identical to the extent they lead with JETPACK. Given the greater impact of the leading JETPACK portion of the mark, these differences do not override the marks’ overall similarity. In our final weighing, this important factor will support a conclusion that confusion is likely. B. Comparison of the goods The second likelihood-of-confusion factor looks at “[t]he similarity or dissimilarity and nature of the goods or services as described in an application or registration.” du Pont, 476 F.2d at 1361. “Even if the goods and services in question are not identical, the consuming public may perceive them as related enough to cause confusion about the source or origin of the goods and services.” Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1267 (Fed. Cir. 2002) (citation omitted); In re Rsch. & Trading Corp., 793 F.2d 1276, 1278 (Fed. Cir. 1986) (“It is … not necessary that the goods [or services] of the parties be identical in order to sustain a finding of likelihood of confusion.”) (citations omitted). Relatedness is not “an all-or-nothing factor” but “should be analyzed along a sliding scale.” Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 1328 (Fed. Cir. 2017). 15 See 6 TTABVUE 7.
Serial No. 98088555 - 9 - One way to show that consumers perceive products or services as related is to show that several companies offer the goods or services in an application and those in a cited registration under the same mark. See, e.g., Naterra Int’l, Inc. v. Bensalem, 92 F.4th 1113, 1117 (Fed. Cir. 2024); Detroit Athl., 903 F.3d at 1306; Hewlett-Packard, 281 F.3d at 1267. The more consumers are exposed to companies selling good X and good Y under one mark, the more they tend to see those goods as related, in the sense that they emanate from a single source. Here, the Examining Attorney placed in the record evidence that several other companies do exactly that.16 In the same vein, evidence that third parties have registered the same mark for both types of goods is relevant. See, e.g., Made in Nature, LLC v. Pharmavite LLC, No. 91223352, 2022 WL 2188890, at *24 (TTAB 2022); In re Country Oven, Inc., No. 87354443, 2019 WL 6170483, at *5 (TTAB 2019); see also In re Halo Leather Ltd., 735 F. App’x 722, 727 (Fed. Cir. 2018). Here, the Examining Attorney placed in the record dozens of use-based third-party registrations covering the goods of Applicant as well as those of Registrant.17 16 Ralph Lauren, March 22, 2024 Nonfinal Office Action, at TSDR 14-21; Michael Kors, id. at 22-31; Kate Spade, id. at 32-39; Brooks Brothers, Nov. 22, 2024, Final Office Action, at TSDR 9-16; American Eagle, id. at 17-28; Gap, id. at 49-56; LL Bean, id. at 57-66; Tommy Hilfiger, id. at 67-74; Cookies, Oct. 14, 2025, Denial of Reconsideration, at TSDR 17-27; Fjäll Räven, id. at 28-33; and adidas, id. at 34-43. 17 GR81, Reg. No. 6680622, Oct. 14, 2025, Denial of Reconsideration, at TSDR 44-45; Reg. No. 7526600, id. at 46-47; S.R. STUDIO. LA. CA., Reg. No. 6190063, id. at 48-49; SUNDRINE & design, Reg. No. 5951327, id. at 50-51; MS.MISSUS, Reg. No. 7663449, id. at 52-64; DEREK LAM 10 CROSBY, Reg. No. 5016700, id. at 67-68; SEVEGO, Reg. No. 6157087, id. at 69-70; MEAN MODÉ & design, Reg. No. 7140250, id. at 71-72; LONDON
Serial No. 98088555 - 10 - Applicant does not address this copious evidence of many third-parties using or registering the same mark for clothing items (as in the application) and backpacks and all-purpose carrying bags (as in the cited registration). Instead, Applicant simply urges that, because the goods aren’t identical, “Applicant’s goods may be differentiated from registrant’s goods.”18 This reflects a misunderstanding of the relevant inquiry. “[T]he confusion found to be likely is not as to the products but as to their source.” Hydra Mac, 507 F.2d at 1400 (citation omitted). Moreover, the goods “need not be identical—the evidence need only establish that the respective products are related in some manner and/or that the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that they emanate BOVAUNT, Reg. No. 7244308, id. at 73-74; FISH LAKE CO & design, Reg. No. 7553647, id. at 75-76; THOUGHTLESS, Reg. No. 6336268, id. at 77-78; TANGERINE TEMPLE, Reg. No. 4240402, id. at 79-80; GUARANTEED FOR GOOD, Reg. No. 7852254, id. at 81-82; D.RT (stylized), Reg. No. 6798244, id. at 83-84; UNFAILING GOODS, Reg. No. 4629386, id. at 85- 86; BUCKLE, Reg. No. 4185395, id. at 87-88; TRIPP NYC, Reg. No. 5225881, id. at 89-90; FOLEY + CORINNA, Reg. No. 7485635, id. at 91-92; NICESTUFF (stylized), Reg. No. 5903736, id. at 93-94; ARI, Reg. No. 7083882, id. at 95-96; DK (stylized), Reg. No. 7504150, id. at 97-98; JM (stylized), Reg. No. 7409167, id. at 99-100; KRE PRIME, Reg. No. 7673266, id. at 101-02; T (stylized), Reg. No. 6980900, id. at 103-04; BONNIE BIANCA & design, Reg. No. 5269434, id. at 105-06; ARC'TERYX, Reg. No. 7839969, id. at 107-08; G S GUGLIELMO & STEPHANNO (stylized), Reg. No. 5978855, id. at 113-14; THE NORTH FACE & design, Reg. No. 2097715, id. at 117-18; HOT SHOT, Reg. No. 6458974, id. at 119-20; ATTEMPTED LOVER, Reg. No. 7158004, id. at 121-23; BALL & PARLAY, Reg. No. 6330376, id. at 124-25; B (stylized), Reg. No. 3407818, id. at 126-27; CIMARRON, Reg. No. 3427982, id. at 128-29; SEE ROSE GO (stylized), Reg. No. 5599511, id. at 130-32; BOSTON PROPER, Reg. No. 4315892, id. at 133-34; GUITAR DUEL ACADEMY, Reg. No. 5291784, id. at 135-36; MOSHE YOSSEL, Reg. No. 6065048, id. at 137-38; WILSON, Reg. No. 6013232, id. at 139-40. A few of the third-party registrations the Examining Attorney placed in the record have since been cancelled, we do not list them here. 18 6 TTABVUE 7-8.
Serial No. 98088555 - 11 - from the same source.” Apex Bank v. CC Serve Corp., 156 F.4th 1230, 1234 (Fed. Cir. 2025)) (cleaned up; citation omitted).19 The evidentiary record persuades us that the goods are related. This factor will weigh in favor of a conclusion that confusion is likely when we do our final weighing and balancing of the relevant confusion factors. C. Comparison of the channels of trade Another factor that may bear on whether confusion is likely is “[t]he similarity or dissimilarity of established, likely-to-continue trade channels.” du Pont, 476 F.2d at 1361. Applicant does not address this factor. The Examining Attorney points out that the third-party websites, cited in the preceding section, show that “the goods share similar trade channels” with “[b]ags often being featured as accessories to clothing in the evidence referenced above.”20 We agree that the record shows overlapping trade channels. This factor lends some support to a conclusion that confusion is likely. 19 Applicant’s original application listed “Bags, namely, handbags, purses, bags with shoulder straps, gym bags, duffle bags,” listing a date of first use of the mark as to these goods of October 31, 2019. Applicant deleted these goods after receiving the initial Office action citing the JETPACK registration. See Sept. 23, 2024, Response to Nonfinal Office Action. This is further evidence of the relatedness of the clothing goods and the goods in the cited registration because Applicant itself used the mark on various types of bags. See, e.g., Octocom Sys., 918 F.2d at 941 (relatedness of applicant’s “modems” and opposer’s “computer programs” was shown,” in part, “by [applicant’s] original application, which indicates [applicant] itself used the mark OCTOCOM for both modems and computer programs”); In re HerbalScience Grp., LLC, No. 77519313, 2010 WL 5651672, at *3 (TTAB 2010) (the applicant’s concession that its identified goods and those of the registrant can emanate from a single source under a single mark was supported by the fact that “applicant originally included nutritional supplements and dietary supplements in its identification of goods.”). 20 See 8 TTABVUE 10.
Serial No. 98088555 - 12 - D. Applicant’s argument that there is no evidence of actual confusion du Pont lists “[t]he length of time during and conditions under which there has been concurrent use without evidence of actual confusion” as a potentially relevant consideration. 476 F.2d at 1371. Applicant’s brief contains one sentence on this point: “Applicant further notes that USPTO records indicate that to date Applicant’s Mark has been in continuous, concurrent use with the cited mark in U.S. Registration No. 5232078 for approximately nine years without evidence of instances of actual confusion of which Applicant is aware.”21 Significantly, du Pont prefaces its list of factors with the statement “the following, when of record, must be considered ….” Id. (emphasis added). While Applicant’s brief says that there is no evidence of actual confusion, a statement in a brief is not itself evidence. In Simulations Publ’ns, 521 F.2d 797, 798 (CCPA 1975); In re Jackson Int’l Trading Co., No. 77600412, 2012 WL 3157151, at *3 (TTAB 2012); see also In re Nat’l Distillers & Chem. Corp., 297 F.2d 941, 944-45 (CCPA 1962) (“statements made over the signature of counsel are not evidence of the facts averred”). There is, for example, no declaration in the record attesting to Applicant’s lack of knowledge of any instances of actual confusion. Further, as to the length of time of concurrent use, Applicant points only to the dates claimed in its application and the cited registration but provides no evidence of either its own use or that of the owner of the cited registration. Applicant cannot 21 6 TTABVUE 6.
Serial No. 98088555 - 13 - simply rely on the date of first use it set forth in the application or registration to prove concurrent use. See Trademark Rule 2.122(b)(2), 37 C.F.R. § 2.122(b)(2) (“The allegation in an application for registration, or in a registration, of a date of use is not evidence on behalf of the applicant or registrant; a date of use of a mark must be established by competent evidence.”).22 Finally, we note that this factor “requires us to look at actual market conditions, to the extent there is evidence of such conditions of record.” In re Guild Mortg. Co., No. 86709944, 2020 WL 1639916, at *8 (TTAB 2020). But, as noted, Applicant has given us no actual evidence on this factor. Beyond the lack of evidence upon which we could make a factual finding on this point, we note that the “[l]ack of evidence of actual confusion or mistake, of course, does not preclude a finding of likelihood of confusion.” In re Calgon Corp., 435 F.2d 596, 597 (CCPA 1971).23 22 The likelihood-of-confusion factors present us with questions of fact upon which we make factual findings. See, e.g., Bullshine Distillery LLC v. Sazerac Brands, LLC, 130 F.4th 1025, 1031 (Fed. Cir. 2025) (“Each of the DuPont factors presents a question of fact.”) (citation omitted). We can’t make a finding of fact on a likelihood-of-confusion factor without evidence upon which to base the finding. Cf. In re Zurko, 258 F.3d 1379, 1386 (Fed. Cir. 2001) (“With respect to core factual findings in a determination of patentability, however, the [Patent] Board cannot simply reach conclusions based on its own understanding or experience—or on its assessment of what would be basic knowledge or common sense. Rather, the Board must point to some concrete evidence in the record in support of these findings.”). 23 Even if Applicant had placed probative evidence in the record, we’d still be getting only half the story, because the owner of the cited registration is not a party to this case. See, e.g., In re Guild Mortg. Co., No. 86709944, 2020 WL 1639916, at *9 (TTAB 2020); In re Inspection Tech. Inc., No. 73287613, 1984 WL 62802, at *2 (TTAB 1984). In addition, for obvious reasons, we do not require USPTO examining attorneys to try to determine if actual confusion has taken place. See Inspection Tech., 1984 WL 62802, at *2 (“Moreover, for the Examining Attorney to attempt to show actual confusion … would be an impossible undertaking.”); see generally In re Pacer Tech., 338 F.3d 1348, 1352 (Fed. Cir. 2003) (the USPTO “is an agency of limited resources” and “cannot be expected to shoulder the burden of conducting market research”) (citations omitted).
Serial No. 98088555 - 14 - We find no evidence that persuades us that this factor should be anything but neutral. E. Weighing the findings on the relevant factors together Having made findings on each of the relevant likelihood-of-confusion factors, our final step is to assess together the findings we have made on the relevant factors to determine if, on balance, they indicate that confusion is likely as to the marks before us. See, e.g., Charger Ventures, 64 F.4th at 1384. The comparison of the marks is always an important factor. See, e.g., Federated Foods, 544 F.2d at 1103 (“The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks.”); In re Max Cap. Grp. Ltd., No. 77186166, 2010 WL 22358, at *1 (TTAB 2010) (“In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods and/or services.”) (citations omitted). Applicant’s mark, while not identical to that of the cited registration, is very similar to it. This factor weighs squarely in favor of a conclusion that confusion is likely. The evidence also shows that consumers view the respective goods as related. This is a factor of “considerable importance” in the likelihood of confusion inquiry. See Pink Lady Corp. v. L.N. Renault & Sons, Inc., 265 F.2d 951, 953 (CCPA 1959); Pep Boys- Manny, Moe and Jack v. Edwin F. Guth Co., 197 F.2d 527, 528-29 (CCPA 1952); see also Federated Foods, 544 F.2d at 1103 (“The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential characteristics of
Serial No. 98088555 - 15 - the goods and differences in the marks.”). This factor, too, supports a conclusion that confusion is likely. The evidence further shows that the trade channels overlap. This further points to confusion being likely. The alleged lack of actual confusion is neutral. Apart from one neutral factor, the relevant factors all point in the same direction: that confusion is likely. On this record, we have no difficulty concluding that confusion is likely. Decision: We affirm the refusal.
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